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Intellectual Property

Aug 2021

The ‘Embed’ Saga Continues: Another Court Rejects ‘Server Test’ With More Decisions Looming

Kenneth P. Norwick

SDNY Rakoff, in Nicklen v. Sinclair, effectively followed Breitbart and fulsomely rejected Perfect 10’s “server rule.” And there is more judicial “embed” activity to be expected in the immediate future.

Aug 2021

Dr. Seuss / Star Trek Mashup Case Heads to Trial After Fair Use Roller Coaster Ride

Jeremy S. Goldman

Judge Sammartino denied a motion for summary judgment brought by the plaintiff, Dr. Seuss Enterprises, leaving it to a jury to decide whether ComicMix’s unpublished book – Oh, the Places You’ll Boldly Go! – infringes the copyrights in Dr. Seuss’ famous children’s books. 

Jul 2021

District Court of Colorado Adopts Meta-Film’s “Access Through an Intermediary” Test in Copyright Case

David Aronoff, Michael Beylkin, and Joshua Bornstein

The decision is the first case in the Tenth Circuit to adopt the “access through an intermediary” test of the highly influential and widely-cited decision Meta-Film Assocs v. MCA.

Jul 2021

Copyright 101

What copyright does (and does not) protect, who owns it, how long does it last, how can it be licensed or transferred, the importance of registration and notice, what constitutes infringement, defenses to infringement, and fair use.

May 2021

Talk to the Hand: Michigan Copyright and Trademark Lawsuit Over Similar Hand Gesture Images Clapped Back

Brian D. Wassom

This lawsuit vindicates the maxim that “no good deed goes unpunished,” but the outcome provides some encouragement for those using advertising images that are minor variations on common themes.

May 2021

Second Circuit Affirms Fair Use Dismissal of “Fish Sticks” Copyright Suit

Joe Slaughter

The Second Circuit affirmed the trial court’s dismissal of a copyright infringement lawsuit on fair use grounds

May 2021

Oracle v. Google: It’s Not Over

Moon Hee Lee

The Court’s decision may have ended the decade-long fight between Google and Oracle, but sets the stage for decades of future copyright litigation.

Apr 2021

The Warhol Foundation v. Goldsmith: Reining in Transformative Use?

Does the Second Circuit’s decision denying the fair use defense bring clarity or confusion to copyright law? Is it time for “appropriation artists” to pay the piper? Is the transformative use doctrine on the wane? Do we see similar arguments under the rubric of substantial similarity? How will the decision effect derivative works?

Mar 2021

When Copyright Met Cryptocurrency: A Conversation About NFTs

Jeff Hermes

MLRC deputy director thinks through non-fungible tokens.

Mar 2021

Sixth Circuit Clarifies When Online Marketplaces Can and Can’t Be Liable for Direct Trademark Infringement

Sam Zeitlin

The court held that direct trademark liability is limited by the Lanham Act’s requirement that the defendant “use” the mark in a way the Act prohibits, and as a result “some trademark-infringing activity does not create liability.”